Legal Practice Notes

HMOs are typically private dwellings first planned for a single household, later adapted to accommodate several distinct households or individuals. Such adaptation almost invariably entails shared bathing or kitchen facilities and the use of parts of the building for functions for which they were never intended, creating clear potential issues affecting not only amenity but also the safety of the accommodation. Moreover, Government and Parliament have recognised the necessity for particular measures for HMOs, owing to the unfortunate reality that people and families most in need of social protection, including those with young children, are frequently compelled to reside in housing which, by and large, is liable to be markedly less suitable than purpose-built flats or houses. The Housing Act 2004 ( HA 2004) introduced licensing for houses in multiple occupation ( HMOs). It sets out a precise definition of HMOs and...

This Practice Note outlines what a statutory demand is and what it is intended to achieve in corporate and personal insolvency, assuming the debtor is located in England and Wales. The statutory demand—the general position A statutory demand (in both corporate and personal contexts) is a formal request for a debt—either immediately payable or due at a specified future time—served on the debtor by one or more of their creditors. Across both regimes, if the debtor, within 21 days of service, does not pay the sum, does not satisfy it or provide security to the creditor’s satisfaction, or does not take the proper steps to stop the creditor acting further upon it, a presumption of insolvency arises on an inability to pay basis in respect of the debtor. Where the debtor is an individual, an unanswered statutory demand supplies a creditor with one of only two bases on which a...

Ownership, leasing or any other lawful use of land typically depends on being able to get to it, so that the land can be enjoyed. The public may use roads and footpaths adopted by local authorities and, where a plot abuts an adopted road, gaining access is usually uncomplicated. Where access must cross another person’s land, recourse to common law or statute might be available, but buyers will ordinarily prefer a formal arrangement—such as a contractual right or servitude—where none already exists. If land is held in common or jointly, each owner may reach and traverse it without needing separate access rights. This Practice Note outlines the typical access questions that can arise in Scottish property deals and the matters a seller’s and a buyer’s solicitor may need to consider. The same themes can arise in lease transactions between landlord and tenant...

Planning conditionality A large proportion of property deals entail various rights and duties that depend upon, or are activated by, the granting of (a satisfactory) planning permission......

Contractual and statutory basis of rent review and time intervals Tenants under 1991 Act Tenants with 1991 Act tenancies enjoy strong security of tenure together with statutory tacit relocation. While parties may set out rent review terms within the lease itself, rent adjustment is, subject to that, governed by the Agricultural Holdings ( Scotland) Act 1991, s 13 ( AH( S) A 1991), which provides for variations in rent once the contractual ish has passed and at specified intervals thereafter. As the vast majority of 1991 Act leases continue on tacit relocation, rent review is, in almost all instances, determined by AH( S) A 1991, s 13. This statutory scheme cannot be excluded by agreement, although the parties may consensually alter the rent at any time. In Moll v Mc Gregor 1990 SLT ( Land Ct) 59 (not reported by Lexis Nexis®), one lease dated from 1944 and...

This Practice Note This Practice Note examines the principal matters that may arise when engaging with a local authority in England in a commercial finance transaction in practice. It outlines the kinds of steps a local authority might take in a standard commercial funding arrangement and assesses the capacity and authority of local authorities when undertaking those steps. It also reviews common representations and warranties provided by local authorities and other authority-specific points to address when dealing with a local authority in a commercial finance transaction, including their power to invest and Wednesbury unreasonableness as well. Note that this Practice Note deals with commercial finance supplied to local authorities. It does not address other funding sources, such as grants available to local authorities, which fall outside the scope of this Practice Note. It also does not extend to local authorities in Wales. The main...

This Practice Note explores the function and significance of boilerplate clauses within a contract. It highlights the boilerplate provisions most frequently seen in transaction-related agreements and considers the method to adopt when reviewing or drafting agreements that contain boilerplate terms. Solicitors handle an extensive range of transactions, yet every one of them will, in some respect, involve written contracts. Each of those contracts ought to include certain boilerplate provisions. What is boilerplate? There is no universally accepted definition of a ‘boilerplate’ clause. Such clauses are often regarded as standard, catch-all terms. They are routinely accepted with minimal thought or bargaining, but treating them this way is risky. It is better to view ‘boilerplate’ as a label for the clauses inserted to govern the mechanics of how the agreement operates and the legal considerations common to most transactions. They are typically located at the start and the close of an...

This Practice Note explores the Hague Convention on Choice of Court Agreements and how it operates when enforcing a court judgment or a judicial settlement. It addresses what counts as a judgment and a judicial settlement, the criteria for recognition and enforcement of a court judgment, including severability, together with enforcement of non-monetary orders and judicial settlements. The Practice Note also outlines the steps for recognition and enforcement, the supporting documents needed, and points specific to England and Wales. Finally, it considers the bases for refusing recognition or enforcement under the convention. For practitioners using the Convention, an explanatory report by Trevor Hartley and Masato Dogauchi offers detailed commentary on each article. It further signposts severability within judgments and the treatment of non-monetary relief and settlements under the convention. Does the Convention...

Introduction and background Certain advisers who deliver tax advice and deal with HMRC for clients will have to enrol with HMRC in future and comply with baseline standards set by the department. HMRC has signalled that roll-out will feature a transition window of no less than three months. In the Autumn Budget 2024, on 30 October 2024, the government stated it would require registration of tax advisers acting with HMRC on clients’ behalf from April 2026, and it released a summary of replies to a consultation first issued in March 2024. Those replies clearly backed compulsory registration. In Budget 2025, the government said that, in light of the consultation feedback, it would not regulate tax advisers and would collaborate with the profession to lift standards in the tax advice market. In July 2025, HM Revenue & Customs ( HMRC) issued draft...

Introduction This playbook sets out guidance for negotiating alterations clauses in leases of parts within larger buildings — for example office blocks or shopping centres (and comparable retail settings) — with the aim of securing tenant‑friendly outcomes. It presents preferred wording, alternative fallbacks, and drafting commentary designed to benefit the incoming tenant. It is intended for use by lawyers advising prospective tenants and by in‑house counsel, who should tailor the document to address the client’s specific circumstances and fully safeguard the client’s position. The stated risk profile may shift according to the particular client. Within this guide you will find recommended provisions, fallback formulations, and practical pointers that lean towards the tenant’s interests. It does not cover drafting where the tenant has a significant negotiating upper hand (for instance, an anchor tenant situation). This playbook forms part of a wider suite offering...

When disagreements arise in property transactions, parties typically have a number of avenues for resolving matters, each bringing its own benefits and drawbacks. This Practice Note explores those routes and provides examples of the types of property dispute that may lend themselves to settlement through alternate dispute resolution ( ADR). ADR in property disputes It is well recognised that ADR can be an effective method of resolving disputes, especially in property disputes and other commercial transactions. ADR is: efficient cost-effective capable of producing settlements that courts may not be able to replicate more imaginative than judicial awards tailored to the commercial needs of the parties At present, ADR is not compulsory in Scotland, so it is not a necessary pre-requisite to legal proceedings; however, practitioners still have obligations to advise on, and consider, ADR......

The general anti-abuse rule (the GAAR): neutralises, by way of just and reasonable adjustments made by HMRC or the taxpayer, any tax advantage that would, absent the GAAR, arise from abusive tax arrangements; and has been in force since 17 July 2013 (the date of Royal Assent to the Finance Act 2013), except that, for National Insurance contributions, it has applied only from 13 March 2014. This Practice Note: describes the Finance Act 2021 measures that adapted the standard GAAR procedures for partnerships; explores the GAAR’s purpose; sets out when the GAAR applies and examines: the meaning of tax arrangements and tax advantages; the taxes within scope; what is “abusive” for GAAR purposes; and the GAAR penalty; outlines taxpayer safeguards built into the legislation; explains how the GAAR interacts with other...

This Practice Note explores title restrictions under the Land Registration Act 2002 ( LRA 2002). It examines why and how a restriction is placed on a title, the circumstances for its entry or removal, the prescribed restriction forms, who can seek one, and the steps for compliance. It further addresses the use of restrictions to safeguard beneficial interests in land, such as under a trust of land or where property is co-owned. What is a restriction? A restriction is a register entry that controls the conditions under which a disposition of a registered estate or charge can be entered on the register. bar registration of any disposition, or a particular class of disposition operate without limit, or for a fixed duration stated in the restriction remain in force only until a named event occurs, for example service of notice or receipt of...

Meaning of ‘highway’ At its widest, a highway is a way—being a defined route such as a road, bridleway or footpath—over which the public may pass and re-pass. ‘ Highway’ and ‘public right of way’ are often treated as the same, though ‘highway’ more usually denotes the physical corridor rather than the entitlement itself. For instance, a route used by motor vehicles would typically be described as a ‘highway’ rather than a ‘right of way’. Right of passage Once a route is a highway, the public acquire a right to go to and fro along it. That right is limited by the highway’s type: footpaths and pavements permit travel on foot; bridleways allow use on horseback; and vehicular roads cater for movement with or without vehicles. Classes of highway a carriageway, including a byway open to all traffic (for use on foot, horse, cycle, motorised and...

Warranty and indemnity ( W& I) insurance in M& A transactions W& I insurance can be used in private company sales and purchases, whether the deal is a share sale or an asset sale. The buyer or the seller may arrange cover for losses arising from breaches of the seller’s warranties or indemnities set out in the relevant share purchase agreement or asset purchase agreement (the acquisition agreement), including any tax indemnities under a tax covenant. Although chiefly applied in private company M& A, it may on occasion feature in public company transactions where the target or its shareholders provide warranties. As well as allocating risk, parties frequently use the policy tactically: a bidder in a competitive auction can separate its offer from rivals, and sellers can reduce sums locked in escrow and realise proceeds more quickly. In the UK and other...

Practice Note This Practice Note examines the situation where a tenant grants an underlease for a period that exceeds the tenant’s unexpired lease term, addressing the legal and commercial ramifications, the effects under the Landlord and Tenant Act 1954 ( LTA 1954) and the Landlord and Tenant ( Covenants) Act 1995 ( LT( C) A 1995), and the associated land registration requirements. An underlease granted for a duration equal to, or longer than, the headlease functions as an assignment rather than an underlease. As a result, any underlease must be for a term at least one day shorter than the headlease. It is prudent to ensure a minimum gap of three days in routine leasing practice today......

This Practice Note explores when the Transfer of Undertakings ( Protection of Employment) Regulations 2006, SI 2006/246 ( TUPE 2006) may apply to property transactions, and the consequences for employers (such as landlords, tenants, managing agents and other third‑party contractors) and for employees. It outlines the scope and effect of TUPE 2006, covering business transfers and service provision changes. It then looks at specific contexts: the sale of commercial freehold or leasehold property; the grant, termination or assignment of a lease; property management and service providers; changes in third‑party service provision; and employee accommodation and resident employees. The impact of insolvency on staff transfers in the commercial property setting is also highlighted. Finally, the Note addresses due diligence and the steps parties can take to manage TUPE risk in property...

Power of court to appoint new trustees This Practice Note outlines the purpose and process of section 41 of the Trustee Act 1925 ( TA 1925), which gives the court power to appoint or replace trustees in specified situations. As a remedy of last resort, this Practice Note sets out when that jurisdiction might be engaged. It also reviews alternative options open to practitioners and differentiates between the scope of TA 1925, s 41 and the court’s inherent power to remove trustees. Under TA 1925, s 41 the court has a statutory power to appoint a new trustee, either instead of, or in addition to, those currently acting. TA 1925, s 41 states in effect that, whenever it is expedient to appoint a new trustee or trustees, and it is found inexpedient, difficult, or impracticable to do so without the court’s...

A developer of a housing estate or another facility will normally need to install sewers and drains to manage both domestic sewage and surface water effectively. Sections 21 and 22 of the Building Act 1984 empower a local authority to insist that drains are connected to sewers in certain circumstances clearly defined. Construction specifications Where a sewerage undertaker judges that a proposed sewer could be required as part of its wider sewerage network, it may, where appropriate, insist that the developer—excluding a railway, canal, dock or harbour undertaker carrying out works on its own land—constructs it to the undertaker’s own specification. Any such stipulation must not conflict with, or go beyond, the standards prescribed under s. 106B of the Water Industry Act 1991 ( WIA 1991). Please note that in Wales, the relevant parts of s 106B, inserted by section 42 of the Flood and Water...

What is a service charge? A service charge is a sum a tenant may have to pay to a landlord under a commercial lease to reimburse the landlord for services they provide in connection with the common parts and for the upkeep of the property. Commonly, this applies where multiple tenants occupy one property, for example a shopping centre, and the landlord looks after the communal parts of the building for everyone’s benefit. In most contemporary leases the tenant pays the service charge on account, before the landlord incurs the expenditure, calculated from an estimate of the next year’s costs. At the close of the accounting period a reconciliation is prepared and any shortfall or surplus is settled by or to the tenant. Sometimes, earlier forms of lease stipulate that the landlord must meet the outlay first. For more detail on service charges...